2012 (5) TMI 413 - AT - Customs

Revision of the value in order to arrive at the Assessable Value Held that - it is upto the proper officer of Customs to determine the assessable value and upto the assessee to pay up the duty thereon. This aspect of determination of assessable value and payment of duty thereon is, however, beyond the scope of the show-cause notice and hence beyond the scope of the present proceedings, case remanded to the original authority directing it to pass a speaking order in de novo adjudication of the show-cause notice, appeals are disposed of

Summary

Issues:
1. Jurisdiction of the appellate authority to order remand for de novo adjudication.
2. Correctness of the appellate authority's decision to recommend confiscation of goods and imposition of penalties during remand.
3. Scope of determination of assessable value and duty payment in the context of show-cause notice.

Analysis:

Issue 1: Jurisdiction of the appellate authority to order remand for de novo adjudication
The Tribunal observed that the appellate authority lacked the power of remand as per the decision in MIL India Ltd. vs. CCE, Noida 2007 (210) ELT 188 (SC). The Supreme Court clarified that the Commissioner (A) did not have the authority to remand matters back to the adjudicating authority for fresh consideration post the amendment of Section 35A under the Finance Bill, 2001. Consequently, the appellate Commissioner's order was set aside solely on this jurisdictional ground.

Issue 2: Correctness of recommending confiscation and penalties during remand
The Tribunal criticized the appellate authority's decision to recommend confiscation of goods and imposition of penalties while ordering remand for de novo adjudication. It emphasized that in such cases, all issues should be left open for fresh consideration by the adjudicating authority. The Tribunal disapproved of the appellate authority's approach of directing confiscation and penalties, stating that this procedure was not appropriate in the context of remand for de novo adjudication.

Issue 3: Scope of determination of assessable value and duty payment
Regarding the determination of assessable value and duty payment, the Tribunal clarified that this aspect was beyond the scope of the show-cause notice and the ongoing proceedings. It highlighted that the determination of assessable value and duty payment was the responsibility of the proper officer of Customs and the assessee, respectively. The Tribunal directed the original authority to pass a speaking order in de novo adjudication after providing the parties with a reasonable opportunity to be heard. It also allowed the appellants to rely on any favorable decisions related to goods imported as post parcels.

In conclusion, the Tribunal remanded the case to the original authority for a fresh adjudication of the show-cause notice, emphasizing the need for a fair process and adherence to legal procedures.